INSURANCE • COMMERCIAL • BANKING
No liability for insignificant risk - Common sense
prevails in supermarket collision
Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd [2015] NSWSC 15
Paul Angus & Madelaine Lu | May 2015 | Insurance & Financial Services
Summary
On 17 April 2015, the Supreme Court of
NSW confirmed that while an occupier
of a shopping centre has a duty of care
to avoid unnecessary risks of injury
associated with contractors performing
their task, it will not be liable where the
relevant risk of injury was insignificant.
Facts
The Plaintiff was a part-time merchandiser employed by
Counterpoint. The Plaintiff attended a Woolworths store
on 27 November 2008 and was working in the shampoo
section, positioning stock when she stepped up onto
a safety step to remove some of the products. As she
stepped down, she collided with a shopping trolley being
pushed by a customer.
The Plaintiff sued Woolworths as the occupier of the
premises and Counterpoint as her employer for failing to
take appropriate precautions against the risk of injury in
the course of her work.
Findings
Campbell J held that Woolworths owed ‘visiting
merchandisers a duty to exercise reasonable care to avoid
unnecessary risks of injury arising out of the ongoing conduct
of Woolworths’ operations while they were performing their
work’.
His Honour found that the risk of harm was reasonably
foreseeable when one considers the attention of the
merchandiser being absorbed in her task and the
customer’s lookout diverted by items on the shelves.
www.turkslegal.com.au However, his Honour accepted Woolworths’ evidence that
it did not have any history of personal injury incidents
between merchandisers and customer trolleys and
found that the probability of the risk of personal injury
materialising was ‘insignificant’ within the meaning of
section 5B(1) of the Civil Liability Act 2002 (NSW).
Further, his Honour rejected the Plantiff’s argument that
Woolworths was required to take precautions to prevent
such risk i.e barricades, offsider, working out of trading
hours etc..
The Court found that the Plaintiff’s injury resulted from
the Plaintiff and a customer failing to see or perceive the
presence of each other.
On that basis, the Court found no negligence on the
part of the occupier and that it would be reasonable for
the employer to leave the task of stepping on and off a
step to the ‘good sense and ordinary care of a mature aged
worker’.
Implications for occupiers and
employers:
• While the Court has confirmed the duty of care owed by
occupiers of retail stores to entrants to the stores to
avoid foreseeable risks which are not ‘insignificant’,
occupiers can bring evidence of the rarity of particular
incidents to convince a court which the particular
risk was so unlikely as to not require the occupier to take
precautions against the relevant risk.
• Even though employers are under a non-delegable
duty to their employees it is reasonable in some
circumstances for an employer to rely upon the good
sense and ordinary care of their employees.
This common sense decision of the Supreme Court of
NSW provides both occupiers and employers with a
Sydney: 02 8257 5700 Melbourne: 03 8600 5000
INSURANCE • COMMERCIAL • BANKING
degree of comfort that courts will not hold them liable
for every accident that occurs, and certainly not if that
accident was not a result of a breach of their duty as
occupier or employer.
For more information,
please contact:
Paul Angus
Partner
T: 02 8257 5780
M: 0408 188 808
[email protected]
Madelaine Lu
Lawyer
www.turkslegal.com.au Sydney: 02 8257 5700 Melbourne: 03 8600 5000